Disability & Employment Law in New York State - Cornell University

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not need to be limited. The “reasonable” or “effective” response to a minor impairmentwill, by definition, be minor. As a result, federal disability law has been amendedeffective in 2009 to de-emphasize the importance of the definition of disability.Another difference from race and sex civil rights laws is the level of emphasis onqualification. Women and/or people of color rarely have to demonstrate that their sex orrace does not make them unqualified to perform a particular job. However, there is lessof a presumption with disability that differential treatment is inherently discriminatory.Therefore, disability civil rights statutes generally require individuals with disabilities todemonstrate that they are qualified for the position at issue. That is, where disabilitydiscrimination in employment is at stake, plaintiffs typically need to do more thandemonstrate that they were treated differently based on disability. They must alsoestablish that the disability does not, in fact, make them unqualified or incapable ofperforming the work in question. Disability civil rights litigation, therefore, can requirefairly complex assessments of the relationship between the limits and skills of a personwith a disability, and the particular nature and structure of a position or workplace.In addition to the definitions of disability and qualification, the concept of “reasonableaccommodation” is particularly critical to disability civil rights, as it indicates that in orderfor equality to be achieved, institutions will often need to offer people with disabilitiesdifferent options or resources, in order to arrive at like outcomes. Not all disabilitiesrequire accommodation; disability discrimination can also occur based on particulardiscriminatory or negative treatment. However, the failure to accommodate is often aprimary area of contestation in disability civil rights claims. As a result, in drafting orimplementing disability civil rights laws, policymakers must consider how to define whatconstitutes an accommodation and what is reasonable or an undue burden (as well aswhich party must prove reasonableness or burden).The next part reviews a number of core elements of disability civil rights law, includingboth the definitions and frameworks that allow individuals to prospectively secure legalprotection as persons with disabilities, and the thresholds and processes individualsmust meet in order to demonstrate that they are qualified or capable of performing asemployees, and that any needed accommodations are in fact “reasonable.”II Disability Human Rights in New York: An Overview and State/FederalComparisonThe NYSHRL provides:1. It shall be an unlawful discriminatory practice:(a) For an employer or licensing agency, because of an individual’s …disability, [or] predisposing genetic characteristics, … to refuse to hire orto bar or to discharge from employment such individual or to discriminateagainst such individual in compensation or in terms, conditions orprivileges of employment. 12. . . .12 N.Y. Exec. Law § 296(1)(a).To learn more go to http://www.nymakesworkpay.org3
Disability & Employment Law in New York State:Analysis and Recommendations3. (a) It shall be an unlawful discriminatory practice for an employer … to refuseto provide reasonable accommodations to the known disabilities of anemployee, prospective employee or member in connection with a job oroccupation sought or held or participation in a training program. 13The NYSHRL covers “employers” with as few as four employees. 14 Small businesseswith three or fewer employees are not subject to the legal requirements discussed inthis paper. By contrast, the federal ADA only covers employers with 15 or moreemployees. 15 Coverage of small employers is important, because businesses withfewer than 20 employees employ nearly 22 million Americans (18% of the workforce). 16Very small businesses (with fewer than 10 employees) employed 15.9 million people in2003. 17 Over half of all employers in the United States (3.9 million) in 2003 had fewerthan 5 employees. 18 73% of employers (5.3 million) had fewer than 10 employees. 19New York’s employment picture is similar, with nearly 60% of businesses having fewerthan 5 employees and 77% having fewer than 10 employees. 20 The state legislature iscurrently considering bill A4648 21 , which would apply the NYSHRL to all employers,rather than to those with at least 4 employees, excepting those businesses where atleast 2/3 of those employed are family members.NYSHRL, unlike the ADA, does not go into detail in its definition of employer oremployee, except to state that an individual employed by his or her parents is notconsidered an “employee.” 22 NYSHRL also covers licensing agencies, employmentagencies, and labor organizations.New York’s conceptions of disability, discrimination, and reasonable accommodationare, in many respects, similar to federal disability law, as represented by the Americanswith Disabilities Act (ADA). 23 However, there are differences as well. The following subsectionsreview the definitions of disability (i.e. which individuals are protected),reasonable accommodation, and the related concept of “undue hardship,” discriminatoryactions, defenses to the charge of discrimination, burdens of proof, complaintprocedures, and forms of relief available.13 Id. § 296(3)(a).14 Id. § 292(5).15 42 U.S.C. § 12111(5).16U.S. Small Business Administration, Office of Advocacy, Frequently Asked Questions,http://www.sba.gov/advo/stats/sbfaq.pdf (2008).17U.S. Census Bureau, Facts for Features Special Edition: Small Business Week,http://www.census.gov/Press-Release/www/releases/archives/facts_for_features_special_editions/006601.html (2006).18 Id.19 Id.20 U.S. Census Bureau, County Business Patterns, http://www.census.gov/prod/2005pubs/03cbp/cbp03-1.pdf (2005).21 A4648/S1377, Applies the Provisions of the Human Rights Law to all Employers Regardless of theNumber of Persons in Their Employ Excluding Certain Family Operated Businesses.22 N.Y. Exec. Law. § 292(6).23Americans with Disabilities Act [hereinafter ADA], 42 U.S.C. §§ 12101 et seq.,http://www.ada.gov/pubs/ada.htm.4
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